Here’s a litigation tactic your attorney may suggest to cut potential liability in a case where you may be liable: If you make an unconditional offer to reinstate the employee and she rejects the offer, you won’t have to pay future lost wages after the offer date.
Recent case: Jia worked for a bank in New York when her husband took a job in California. Jia then decided to follow him, but her supervisor convinced her to accept a telecommuting agreement that would allow Jia to relocate and keep her job.
Jia moved and telecommuted for about a year. Then she became pregnant. After telling her boss the good news, she learned that her telecommuting arrangement was going to change to require spending two days per week in the New York office.
Jia’s doctors nixed the idea of weekly flights, so she requested continuing to telecommute as an accommodation. The bank denied the request and terminated Jia.
Jia filed an EEOC complaint alleging ADA violations, as well asunder New York and California state law.
Shortly after, the bank offered Jia her job back. She rejected the offer.
Now the court hearing the case has said that if the bank can prove its offer was unconditional, Jia won’t be able to collect future lost wages for the time following the offer. (Sheng v. M&T Bank, No. 12-CV-1103, WD NY, 2014)